What is the distinction between an apparatus and a product made by the apparatus?
An apparatus and a product made by the apparatus can be shown to be distinct inventions if either or both of the following can be shown:
- (A) The apparatus as claimed is not an obvious apparatus for making the product and the apparatus as claimed can be used to make another materially different product; or
- (B) The product as claimed can be made by another materially different apparatus.
As stated in MPEP 806.05(g):
“An apparatus and a product made by the apparatus can be shown to be distinct inventions if either or both of the following can be shown: (A) that the apparatus as claimed is not an obvious apparatus for making the product and the apparatus as claimed can be used to make another materially different product; or (B) that the product as claimed can be made by another materially different apparatus.”
This distinction is crucial for determining whether a restriction requirement is appropriate between apparatus and product claims.
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